FIVE YEARS LATER

HOW TO LEGISLATION BY DAVID HICKEY

This summer, an important anniversary passed by with hardly any notice: The Supreme Court of the United States’ ruling in Reed v. the Town of Gilbert turned five.

This is no mere historical note, at least not for our industry. In the last five years, Reed has turned sign regulations across the country upside down. And now, with other cases making their way through the courts that seek to expand or redefine Reed, we face another potential upending.

First, a little context: Reed was a case in which the Town of Gilbert, Arizona had limited a church’s ability to use temporary directional signs. The church’s signs were treated differently than other kinds of temporary sign users. The Supreme Court’s unanimous ruling affirmed that sign regulations cannot be content based and forced thousands of communities across America to revise their local ordinances to make sure they don’t violate the First Amendment rights of sign users.

In the five years since Reed, ISA has worked with hundreds of local communities as they have reviewed and amended their sign codes to comply with the court’s decision. We’ve also trained thousands of local planners who had to navigate these complex issues through Webinars, workshops, and resources. ISA relies heavily on the peer-reviewed, university-led research from the Sign Research Foundation (SRF) for much of its work.

Meanwhile the Reed decision has been reverberating throughout state and federal courts.

In May, a case reached the Supreme Court that relies heavily on the logic of Reed. However, this case, Barr. American Association of Political Consultants, Inc., isn’t about signs but instead involved automated phone calls (“robocalls”). Congress had created an exception for

those calls that dealt with collecting government debt; political groups argued that distinction was content based.

In California, freelance journalists want to apply Reed to the state’s controversial law AB 5, arguing that other professions have been exempted from the law’s onerous provisions. AB 5 limits how many assignments a freelancer can perform before being considered a full-time employee—proving just how far a court case like Reed can stretch. This case is currently before the U.S. Ninth Circuit Court of Appeals.

While those two cases are not specifically related to our industry, any court ruling that limits or expands Reed could have a direct impact.

But let’s focus here on Reed’s continued application when it comes to signage, especially the on-premise vs. off-premise distinction.

In 2017, Thomas v. Bright entailed a billboard owner (Thomas) winning a

HOW TO LEGISLATION | BY DAVID HICKEY

case against the Tennessee Depart- ment of Transportation, with the federal district court ruling that the state’s on- vs. off-premise distinction was content-based and therefore un- constitutional. The decision reflected an interpretation based on the Reed v. Town of Gilbert decision. The case was appealed to the Sixth Circuit, which reaffirmed that the government can- not distinguish between on-premise and off-premise signs.

The Tennessee Attorney General has filed a petition to have the U.S. Supreme Court hear the case. How- ever, as of this writing, no decision has been announced whether Thomas v. Bright will be taken up by the U.S. Supreme Court.

But the finding already has an im- pact. This past April, a federal district court used the Thomas v. Bright ruling in Kentucky, which is in the same U.S. Sixth Circuit Court jurisdiction.

In that case, the judge found that a gentleman’s club could continue us- ing a billboard advertising its services after the state ordered its removal based on its Highway Beautification Act guidelines. This particular case reiterated that distinctions between on-premise and off-premise signs vio- late the Reed ruling.

For our industry, however, using Reed and Thomas to solve the onpremise vs. off-premise debate is particularly troublesome. The concern is that cities and states would create new restrictions for on-premise signs rather than loosen restrictions for off-prem- ise signs. The trickle down would be a more challenging business environ- ment—both for our end-users and for sign and graphics companies.

This distinction is important (and practical) since on-premise and offpremise signs have separate and unique functions. It is an area that the International Sign Association will continue to watch very closely.

David Hickey is vice president of gov- ernment a airs at the International Sign Association.

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